Clean Power Plan Stay Seen as Difficult for Opponents

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By Andrew Childers

July 30 — Opponents of the Clean Power Plan will face an uphill battle in seeking a judicial stay of the Environmental Protection's Agency's upcoming carbon pollution standards for power plants during the inevitable litigation, attorneys said.

States and industry groups opposed to the rule, which could be finalized as early as Aug. 3, will certainly ask federal appellate judges to block implementation of the carbon dioxide standards during the litigation, but they must overcome significant legal hurdles to prove their harms are sufficiently imminent and irreversible to warrant halting the rule, attorneys said.

Additionally, the expectation that the EPA will extend the deadlines for states to submit plans to comply with the standards and begin implementation of the program could blunt those challenges, they said.

David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, said getting a stay of an agency rule from the U.S. Court of Appeals for the District of Columbia Circuit is “an extraordinary event, far from the norm.”

“In most cases, the litigants don’t even ask,” he told reporters July 30.

Petitioners need to show the court they have a high likelihood of winning the lawsuit on the merits and that they would be imminently and irreparably harmed if the rule were left in place during litigation, Doniger said.

The Clean Power Plan (RIN 2060-AR33) would set a unique carbon dioxide emissions rate for the power sector in each state, which would be implemented by state air pollution regulators.

Extra Time Could Blunt Challenges 

The EPA could stave off the likelihood of the court granting a stay of its rule by allowing states and utilities additional time to comply, attorneys said.

“EPA is certainly helping itself on the fight on the stay if reports are accurate and they are giving an extra year on [state implementation plans] and moving that initial date to 2022,” Brian Potts, a partner at Foley & Lardner LLP, told Bloomberg BNA July 30.

The EPA recently briefly posted a slide to its website showing it would extend the initial Clean Power Plan compliance deadline from 2020 to 2022 as part of the final rule.

Additionally, the EPA would provide states with an additional year to develop their compliance plans. The EPA has said the slide was only meant to be a “web design mock-up” but didn't comment on the slide's contents, which said the final rule would be issued Aug. 3.

“This is classic lawyers impacting regulation to try to make the rule as defensible as possible,” Richard Alonso, a partner at Bracewell & Giuliani LLP, said of the deadline extensions.

Attorney Sees Court Issuing Stay 

Unlike other attorneys, Alonso predicted the D.C. Circuit would almost certainly stay the rule.

“They’re not going to sit on the sidelines and allow the EPA to move forward with such an enormous program without them opining on what they think of the program,” he told Bloomberg BNA July 30.

Although the EPA may give states more time to comply, Alonso said states could be best positioned to seek the stay by arguing they lack the resources necessary to submit initial compliance strategies to the EPA in 2016 with final plans by 2018.

During litigation, the D.C. Circuit had stayed implementation of the EPA's cross-state air pollution rule (RIN 2060–AP50), which established limits on power plant emissions of sulfur dioxide and nitrogen oxides in 28 states that contribute to ozone and fine particulate attainment issues in downwind states.

However, attorneys said that rule was issued only six months before it took effect, making it easier for opponents to argue they would be harmed by its immediate implementation.

States Could Have Three Years to Submit Plans 

The Clean Power Plan could allow states up to three years before they must submit implementation plans and seven years before the first carbon dioxide emissions reductions must be achieved. Additionally, states have the option of not developing their own plan and allowing the EPA to issue a federal plan on their behalf.

Doniger said that would undercut any arguments states and utilities might make that the harms posed by the Clean Power Plan are so burdensome and imminent as to warrant staying the rule.

“That’s a severe test they cannot meet,” he said.

Alonso said the likelihood of a stay is also dependent upon the panel of D.C. Circuit judges that hears the inevitable lawsuits.

States and industry groups opposed to the proposed Clean Power Plan already have had lawsuits to block the proposed rule rebuffed by the D.C. Circuit as premature. However, 14 states have filed petitions seeking to have those challenges reheard either by the same panel or by the full appellate court.

Three-Judge Panel Considered Rule 

The case was originally heard by Judges Karen LeCraft Henderson, Brett Kavanaugh and Thomas Griffith, widely viewed as an extremely favorable panel for opponents of the rule.

Attorneys said the court could choose to assign future litigation to that same panel, given their prior experience with the original lawsuits. Alternately, opponents of the rule could seek to have future challenges to the final rule consolidated with the existing rehearing request, which also would mean the case would be heard by the same three judges.

“I do think the panel could be the same, and this is definitely a very favorable industry panel,” Potts said.

To contact the reporter on this story: Andrew Childers in Washington at achilders@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com